I thought we were done with blockbuster election law decisions before Labor Day, but now comes this order from a federal district court in Ohio in Obama for America v. Husted granting a preliminary injunction enjoining the state from enforcing a new law barring early voting on the weekend before election day. The state had such voting in 2008 but eliminated it in 2012 except for UOCAVA voters–including military voters, who might be deployed at any time.

The judge first noted that the state did not mandate that election boards provide military voters who might be deployed at any time an actual right to cast an early ballot. It instead left the question to local election boards. Using the Anderson/Burdick balancing test and the right to no arbitrary and disparate treatment recognized in Bush v. Gore and other cases, the Court held that taking away early voting for all voters except (possibly) the UOCAVA voters violated the equal protection clause:

From the onset of this litigation, Defendants have pointed to special concerns for the military—concerns all parties share—and the military’s need to maintain additional access to in-person early voting. But for UOCAVA voters, what is left is, potentially, one day: Monday. Defendants have presented no evidence to sustain the inference that in-person early voting on Monday—one day—will burden county boards of elections to the extent that the injury to Plaintiffs is justified. Moreover, Defendants undercut the virtue of their support of military voters by failing to protect any significant measure of UOCAVA voting. Unless a serviceperson is “suddenly deployed” at exactly the right time—enabling in-person voting on Monday—he or she will likely be unable to vote, depending on the local elections board’s “discretion.” That the State cannot justify its interest in foreclosing Ohio voters for one day emphasizes the arbitrary nature of its action.

Finally, this Court notes that restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive UOCAVA voters from early voting. Instead, and more importantly, it places all Ohio voters on equal standing. The only hindrance to UOCAVA early voting is the Secretary of State’s failure to set uniform hours at elections boards during the last three days before Election Day. On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day—a right previously conferred to all voters by the State—outweighs the State’s interest in setting the 6 p.m. Friday deadline. The burden on Ohio voters’ right to participate in the national and statewide election is great, as evidenced by the statistical analysis offered by Plaintiffs and not disputed by Defendants. Moreover, the State fails to articulate a precise, compelling interest in establishing the 6 p.m. Friday deadline as applied to non-UOCAVA voters and has failed to evidence any commitment to the “exception” it rhetorically extended to UOCAVA voters. Therefore, the State’s interests are insufficiently weighty to justify the injury to Plaintiffs. See Anderson v. Celebrezze, 460 U.S. 780, 798 (1983).
The issue here is not the right to absentee voting, which, as the Supreme Court has already clarified, is not a “fundamental right.” McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 (1969). The issue presented is the State’s redefinition of in-person early voting and the resultant restriction of the right of Ohio voters to cast their votes in person through the Monday before Election Day. This Court stresses that where the State has authorized in-person early voting through the Monday before Election Day for all voters, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000). Here, that is precisely what the State has done.

The court’s specific order reads: “IT IS FURTHER ORDERED that in-person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters. And specifically, for the purposes of the 2012 General Election, this Order restores in-person early voting to all eligible Ohio voters on Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. This Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that only by doing so can he ensure that Ohio’s election process is “uniform, accessible for all, fair, and secure.'”

Will this ruling be upheld on appeal in the Sixth Circuit? The answer is not clear. I had expressed uncertainty about how the court would rule in this case and Ned Foley expressed greater skepticism of the Obama campaign’s arguments here. There are reasonable arguments over whether the Court picked the right level of scrutiny to apply, and whether the judge applied the scrutiny he said he was applying. Further, there is a major debate about what Bush v. Gore requires, and the Sixth Circuit may have to go en banc to resolve the meaning of the case: does it in fact require (1) equal treatment of all voters in terms of opportunities to vote; and (2) a kind of “non-retrogression” principle, whereby the state may not remove a method of easier voting once it has used it in a past election?

The Sixth Circuit has proved itself to be bitterly divided in election law disputes in the past. The Voting Wars details the bitter dispute over a 2008 case, Ohio Republican Party v. Brunner. The Republican-appointed judges all read a federal statute (the Help America Vote Act) broadly, going beyond the statutory text, and the Democratic judges read the statute narrowly and textually. The flipping of usual jurisprudential opinions seems to have been driven by the judges’ different perceptions about the prevalence of voter fraud and voter suppression.

ORP v. Brunner ended when the Supreme Court sided with Democratic Secretary of State and that the Republican Party likely did not have standing to sue for a supposed violation of HAVA. This case too could end up before the Supreme Court.

This could get very ugly very quickly. This is certainly not the last word, unless SOS Husted chooses not to appeal.